On September 28, 2017, the Supreme Court granted certiorari to consider whether agency fee arrangements imposed by public unions on non-member public employees are constitutional.

The Illinois Public Labor Relations Act, 5 ILCS 315 et seq., authorizes a union representing public employees to collect its dues from its members and “fair share” fees from non-member employees to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”

In 2015, Governor of Illinois, Bruce Rauner, filed suit against various labor organizations that represented bargaining units of state employees in federal district court to halt unions from collecting the “fair share” fees. The governor contended that the Illinois Public Labor Relations Act violates the First Amendment by compelling employees who disapprove of the union to contribute money to it. The Attorney General of Illinois, Lisa Madigan, intervened on the side of the unions.

The district court dismissed the governor’s complaint on the ground that he had no standing to sue because he was not subject to the fees. However, two public employees (Mark Janus and Brian Trygg) already moved to intervene in the suit before the district court dismissed the governor’s complaint. Janus filed his First Amendment claim against AFSCME, Council 31, Trygg filed his claim against Teamsters, and both filed against the Director of the Illinois Department of Central Management Services.

The district court granted the employees’ motion to intervene and found that the complaint attached to their motion was a valid substitute for the governor’s dismissed complaint. Still, the district court dismissed Janus’s and Trygg’s claims. Trygg’s claim was dismissed because he previously had a “full and fair opportunity” to challenge the fees before the Illinois Labor Relations Board and the Illinois Appellate Court. Janus’s claim was dismissed because he failed to state a valid claim. That is, the district court was not able to overrule the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court upheld, against a challenge based on the First Amendment, a Michigan law that allowed a public employer (a municipal board of education), whose employees (public school teachers) were represented by a union, to require non-member employees to pay fees to it. The Supreme Court found that the non-member employees benefited from the union’s collective bargaining agreement with the employer. However, the Supreme Court stated that the fees could only be great enough to cover the cost of the union’s activities that benefited them and could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.” Now, approximately 40 years later, Abood remains the law.

In an effort to have the Supreme Court overrule its 1977 decision, Janus went through the motions required to come before the Supreme Court and appealed the district court’s decision to dismiss his First Amendment claim to the U.S. Court of Appeals for the Seventh Circuit. The court of appeals also dismissed Janus’s claim, and Janus filed petition for a writ of certiorari on June 6, 2017.

Janus’s petition for writ of certiorari marked the third time that the issue of overruling Abood has come before the Supreme Court in recent years. Three years ago, in Harris v. Quinn, 134 S.Ct. 2618 (2014), the Supreme Court considered Abood, but never ruled on the issue of whether an agency fee imposed on non-members of a union is a violation of the non-members’ First Amendment right. Instead, the Supreme Court concluded that the employees in that case were not public employees, and left the issue open for further review. Then, in 2015, the Supreme Court granted certiorari in Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016), to resolve the question of “whether Abood … should be overruled and public-sector ‘agency shop’ arrangements invalidated under the First Amendment.” Following the death of Justice Antonin Scalia, the bench split 4 to 4 on this question.

Here, Janus contended that Abood should be overruled because agency fee provisions compel public employees to support political advocacy. According to Janus, paying a fee violates his First Amendment rights because issues related to collective bargaining are inherently political. Janus also argued that Abood failed to subject agency fees either to the strict scrutiny applicable to regulations of speech or to the level of scrutiny the Supreme Court has applied to compelled expressive associations. Janus then contended that agency fee provisions are not able to survive heightened constitutional scrutiny. Respondents contested Janus’s petition. Among other things, Respondents argues that Abood should be left undisturbed, and that even if the Supreme Court wishes to review Abood, it should wait for a case with a full factual record, which this case does not have.

On September 28, 2017, the Supreme Court granted Janus’s petition for writ of certiorari. At this time, no date for oral argument has been set.

FedAgent will report on oral argument when it is heard and the Supreme Court’s decision when it issues.